Effective October 17, 2000, The American
Competitiveness in the Twenty-First Century Act,
(AC21) provides that a non-immigrant who was previously
issued an H-1B visa or provided H-1B non-immigrant
status may begin working for a new H-1B employer as
soon as that new employer files a "non frivolous" (is
one that has some basis in law or fact) H-1B petition
on the non-immigrant's behalf,

the non-immigrant was lawfully admitted into the
United States;

the non frivolous (is one that has some basis in
law or fact) petition for new employment was
filed before the end of their period of
authorized stay; and

the non-immigrant has not been employed without
authorization since his lawful admission to the
United States, and before the filing of the
non frivolous petition.

Previously, aliens in this situation had to await USCIS
approval before commencing the new H-1B employment.
These provisions apply to H-1B petitions filed
"before, on, or after" the date of enactment (Oct 17,
2000), so all aliens who meet this definition can
begin using the portability provisions.

Current regulations authorize employment with the
existing employer after a request for extension of H-1B status is filed. The alien in this case is employment authorized, but the I-9 form contains no
provision for this authorization. Employers should
follow the documentation procedures they currently
use for an extension of this sort. Typically, this
could involve attaching a copy of the receipt notice
for the filed petition along with a copy of the
alien's I-94 to the
I-9 kept on file.
They should also keep
the receipt notice for
the employer's H-1 petition, make a copy of employee's passport,
keep a copy of the previously approved H-1B's notice of action
I-797 and/or I-94, the latest
I-94 if the candidate has traveled and re-entered the United
States subsequently to the issuance of Form 797, and evidence the
employee has been "performing services for an authorized H-1
employer," such as pay stubs, a signed and dated statement from
the H-1B candidate to the effect that the candidate has not been
employed without authorization since the candidate's most recent
entry into the U.S.

This type of employment lasts
until the pending or new H-1B petition is adjudicated by the USCIS.
Because the employee traveling outside the United States may lose the ability to
return to the new company's employment until the H-1B petition is
adjudicated, and if a visa is needed until the H-1B visa is obtained,
travel during the pending H-1B petition is strongly
discouraged. If approved, the I-9 needs to be updated.
If denied, the employee must cease H-1B employment.

The status of a dependent of a principal
non-immigrant who is working pursuant to portability
benefits is derivative of and linked to the status of
the principal non-immigrant. Therefore, dependents
will remain in H-4 status if the principal
non-immigrant is lawfully working pursuant to
portability benefits.

If someone is on H-4 and is about to apply for H-1B, he/she can not start working
immediately after the H1 application has been submitted. He/she will have to wait until the petition is approved,
as this law applies H-1B to H-1B transfer. So, H-4 to H-1B conversions are not covered.

Lay Off
Please note that if the employee on H-1B visas loses
his/her job, there is no grace period. Such person
immediately goes out of status. USCIS is proposing a
rule, however, that would afford H-1B beneficiaries,
who are no longer working for the initial H-1B
employer, some reasonable period of time such as 60
days after leaving the initial H-1B employer to begin
working for a new H-1B petitioning employer under the
portability provisions. Remember, there is NO such
rule.

There are four contexts in which the question of
whether a non-immigrant has lawfully worked or
maintained lawful status under the above portability
provisions may arise:

Adjustment of
status, when determining whether a
non-immigrant has maintained lawful status or
engaged in unauthorized employment; or

Request for extension of
stay, when determining whether a
non-immigrant has maintained lawful status;
or

Request for change of non-immigrant status, when
determining whether a non-immigrant has continued
to maintain status; or

Removal proceedings because of failure to
maintain non-immigrant status.